Arian v Queensland Building and Construction Commission [2020] QCAT 445

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Arian v Queensland Building and Construction Commission [2020] QCAT 445 PARTIES: YOUNES ARIAN (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR176-20 MATTER TYPE: General administrative review matters DELIVERED ON: 18 November 2020 HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: Member Kent ORDERS: The application for an extension of time filed on 25 June 2020 is refused. The application to review a decision filed on 25 May 2020 is dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the applicant filed an application to review a decision out of time – where the applicant filed an application for an extension of time – whether application for an extension of time should be granted. Reeve v Hamlyn [2015] QCATA 133 Herron v McGregor (1986) 6 NSWLR 246 Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 Jensen v Queensland Building and Construction Commission [2017] QCAT 232 Uren v Harcourts Broadbeach Waters [2018] QCATA 9 Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229. Braunberger v Assistant Commissioner Les Hopkins [2014] QCAT 34. -- 1 of 7 -- 2 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Background [1] On 24 May 2020, the applicant applied to the Tribunal to review an internal review decision of the Queensland Building and Construction Commission (QBCC) dated 8 April 2020. Section 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) sets out that application may be made to QCAT for a review of that decision, ‘as provided for under the QCAT Act’. [2] Section 33(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) states that the application for review must be filed within 28 days of the ‘relevant day’. For present purposes, the relevant day is the day the applicant was notified of the decision.1 The applicant states in his application for review that he was notified of the decision by post “around” 15 April 2020 but informed via email earlier than 15 April 2020. He does not specify the date. [3] The application to review was filed in the Tribunal on 25 May 2019, so by the account given by the applicant and based on the most generous calculation of time it was filed at least 10 days late. However, by the applicant’s own admission he was notified via email earlier than 15 April 2020 therefore the application was filed more than 10 days after the permitted time limit. It is clear on either the strictest or the most generous calculation of time that the application was clearly filed outside of the 28-day time limit provided for in section 33(3) of the QCAT Act. [4] Section 61(1) of the QCAT Act provides that the Tribunal may extend a time limit. The Tribunal issued directions on 12 June 2020 requiring the applicant to file an application to extend time, along with any written submissions in support of that application by 26 June 2020, and for the respondent to file any written submissions in response by 3 July 2020. Direction 3 of the Tribunal directions issued on 12 June 2020 stated that the application to extend a time limit would be determined on the papers and without an oral hearing. My decision and the accompanying reasons for my decision are in response to this direction. [5] The principles applicable to an application for an extension of time are well settled. They are: (a) the extent of the delay and whether there is a satisfactory explanation for the delay; (b) the merits of the application and prospects of success; (c) the likelihood of prejudice to other parties; and (d) whether the extension of time is in the interests of justice.2 1 QCAT Act, s 33(4)(a). 2 Reeve v Hamlyn [2015] QCATA 133, [36] (footnotes omitted). -- 2 of 7 -- 3 Applicant’s Submissions [6] The applicant’s submissions do not fully address the criteria listed above. The application had attached to it a letter from the Queensland Ombudsman. This letter was dated 7 May 2020. Mr Arian wrote in his application received 25 June 2020 that he sent to the Queensland Ombudsman a request for an external review of the QBCC decision. He did this on 5 May 2020. The Queensland Ombudsman indicated on 7 May 2020 that they were unable to assist him and that the correct avenue for him was QCAT. Additionally, the Ombudsman pointed out that Mr Arian was outside of the 28-day time period to review the internal review decision of the QBCC. [7] Mr Arian does not explain why he considered the Ombudsman to be the appropriate body for him to make a request to for a review of the QBCC's decision. He does not respond to the information in the decision letter from the QBCC which indicated that QCAT was the correct review body and that the appeal process must be commenced within 28 days of the notification. Mr Arian received the response from the Queensland Ombudsman that they were not the body that could assist him on 7 May 2020; he filed in QCAT on 25 May 2020. There is no explanation by the applicant for this delay in time. In his application for an extension of time Mr Arian states “... as a result, I missed a bit of time limit to apply again to QCAT for review on notice of decision”. He then stated that for a better understanding of his concerns the reader was to refer to his application GAR176-20 documents. These documents do not explain the reason for his late application, they merely go to what he sees as his frustration with the QBCC and the narrative of his difficulties with the building works carried out at his premises. Respondent’s Submissions [8] In opposing the application to extend time, the respondent referred to: The extent of the delay and whether there is a satisfactory explanation for the delay [9] The delay in respect to which an extension is sought is described as short not lengthy. It is described as approximately four weeks, however the calculation of that period of time is not made clear in the submissions. It is noted that it is outside the 28-day limit that is provided for in the legislation. It was submitted that the applicant had not provided an explanation for the over two-week delay in the subsequent filing of the application in QCAT on 25 May 2020. It was the submission of the respondent that this is relevant and was a factor against an extension of time being granted. In summary it was the Commission’s submission that this delay and a lack of a satisfactory explanation for it should be weighed and considered with all of the other relevant considerations and this should lead to the extension of time not being granted by the Tribunal. The merits of the application and prospects of success [10] The respondent submitted that the applicant’s review application had no prospects of success and that the review application was without merit. These submissions were made on the basis that the applicant’s application to QCAT had asserted that the QBCC did not address his main concerns, which included: the assertion that the certifier who performed private certifying functions at the applicant’s property did not inspect the stairs at the property properly; they had at an earlier time inspected these stairs which resulted in financial damage and the applicant was seeking to recover this -- 3 of 7 -- 4 amount from the certifier in his review proceedings against the QBCC. It was noted that the internal review decision maker, Mr Blackman, responded in detail to those allegations and specifically he pointed out that the QBCC is unable to prevent a certifier from inspecting and identifying issues of non-compliance relevant to assessable building work which may require the expenditure of funds to rectify. Further the QBCC is unable to hold accountable the certifier for any costs incurred by a homeowner in the rectification of incomplete defective or non-complete building works. These things are the responsibility of the applicant and/or the contractors employed by the applicant who performed the work. The applicant had not put forward any material demonstrating the matters raised by Mr Blackman are incorrect or in any way misconceived. It was therefore the submission of the respondent that the application lacked merit and was doomed to failure and that this should be strongly considered when deciding whether or not to grant an extension of time to file the application for review. The likelihood of prejudice to other parties [11] The respondent submitted under this heading that the Tribunal should be guided by the reasoning in the case of Jensen3 and they referred to paragraphs 94 to 99 of that decision. These paragraphs may be summarised as stating that in the area of administrative decision review periods it is important that time limits are observed, and that procedures and processes followed so decision makers do not hamper the rights of those detrimentally affected. The public, public authorities and third parties should not be kept in suspense as to the legal validity of a decision. Paragraph 95 of Jensen can be summarised as saying that the effect of delay on the quality of justice generally has been held to be one of the most important influences motivating legislatures to enact limitation periods. There are also several other reasons set out including lost evidence; oppression to the defendant; claims no longer being able to be made against other parties; and that insurers and public institutions and businesses also have a significant interest in the finality of outcomes. It is submitted by the respondent that these considerations apply in this case and there would be a likelihood of prejudice to other parties if the extension of time was granted. [12] Whether the extension of time is in the interests of justice the respondent again submitted the Tribunal should have recourse to the decision of Jensen which sets out (from paragraphs 121 to 114) whether there will be any hardship to the applicant. In this case it was submitted that the applicant had other areas of recourse, namely, the tradesperson who was responsible for the building of the faulty staircase etc. It was considered in the case of Jensen that the time limits for review apply equally to all applicants and the underlying in an intent that the review proceedings are to be commenced promptly. Finally, there needs to be a compelling explanation for the length of delay. In these circumstances there appears to be no compelling explanation for the delay. 3 Jensen v Queensland Building and Construction Commission [2017] QCAT 232. -- 4 of 7 -- 5 Discussion [13] The relevant factors to be considered by the Tribunal in determining whether an extension of time should be granted were summarised in Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229. This usually calls for some analysis of the factors considered in combination (see Uren v Harcourts Broadbeach Waters [2018] QCATA 9): The extent of the delay and whether there is a satisfactory explanation for the delay [14] Although the length of the delay was not extreme in terms of length (approximately between 18 days and 10 days) this is only one of the factors to be considered by the Tribunal. The applicant has provided no real explanation for his failure to bring the application within time. He merely attaches to his application a letter from the Queensland Ombudsman pointing out that they have no jurisdiction to deal with his complaint and that QCAT is the correct body, however the time for review had probably passed. It is noted that it is clearly set out in the legislation and in the copy of the decision of the internal review that QCAT is the correct body to direct an application for review to. [15] Nothing in Mr Arian’s application for an extension of time rises to the standard of being able to be described as a satisfactory explanation for the delay. This factor and the other listed criteria are to be considered in whether to grant this extension of time. A satisfactory explanation (or “good reason”) is required to account for the delay. In this case the applicant gave no cogent account of why he delayed filing his application even after he was advised, by both the QBCC and the Queensland Ombudsman, that the relevant review body was QCAT. His submissions fail to address the relevant factors. He failed to fully address why he should be granted an extension of time, or alternatively, he failed to identify any factors which compel the Tribunal to grant an extension of time. The merits of the application and prospects of success [16] Although the material filed in no way can act as a substitute for a full hearing of the relevant matters, I am of the view that the applicant’s case has little to no merit. He appears to be seeking a remedy that simply cannot be provided by his application to review an administrative decision. The applicant is seeking to have a monetary order made against the certifier and to have him ultimately held responsible for an issue for which he bears no responsibility. Mr Arian therefore has no real merit to his application and very, very low prospects of success if any. The likelihood of prejudice to other parties [17] I refer to the comments of McHugh J in Brisbane South Regional Authority v Taylor that the ‘effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions’.4 [18] I have given consideration to the passages of Jensen that the respondent referred me to in their submissions, in particular paragraph 95. This point may be summarised as the impact that a delay has on the quality of justice: evidence may get lost; it could 4 (1996) 186 CLR 541, 552. -- 5 of 7 -- 6 be oppressive to the other party to allow an action to be brought after they believed that the time had passed; the ability to arrange your affairs in utilising resources on the basis that no claim can be made against them at this point in time is lost; insurers, public institutions and businesses also have an interest in arranging their affairs knowing that there's no liability beyond a definite period; and adherence to limitation periods in QCAT’s conduct of matters is in the public interest in that it helps ensure that disputes be settled as quickly as possible. Overall, whether it is in the interests of justice to grant the extension [19] This usually calls for some analysis of the above factors considered in combination. The respondent submitted that it was not in the interests of justice or the public interest for the applicant to be permitted to pursue review proceedings which in the circumstances they said were without merit. After review of the information that has been filed, I too have come to the conclusion that this the application is without merit due to its misconceived nature. [20] Regarding what is the public interest I refer to the following comments: The public interest would not be served if an extension of time to file the application was allowed in circumstances where the delay is considerable and a satisfactory explanation for the delay has not been provided. The appropriate order having considered all of the circumstances and the written submissions filed is that the application to extend time for filing the application for review is refused.5 [21] Although the delay is not considerable in this case the applicant has not provided a satisfactory explanation for the delay and therefore, I do not find there is merit employing public resources in an attempt to further prosecute a hopeless cause. I accept that the applicant is not without remedy. He may choose to exercise rights against the builder who is the person responsible for the noncompliance of the stairs and not the certifier. That would appear to be the appropriate course of action. Why Mr Arian has not done so has not been revealed by any of the submissions in this case. Finally, I note that the applicant is seeking financial compensation or repair of the non-compliant stairs. Mr Arian has failed to appreciate that even if he were totally successful in his review application these would not be outcomes that could possibly be granted to him. [22] In this matter the proceedings are misconceived due to them being brought out of time with no adequate excuse. They also lack substance due to the central premise of the remedy that the applicant is seeking in this review application. It is simply not a remedy available to him under an administrative review within the jurisdiction of QCAT. [23] The consequence for the applicant’s primary application to have the decision of the QBCC reviewed is that this application has failed to comply with the QCAT Act in terms of the time frame for filing an application for review. This means the application is not a valid application before the Tribunal and cannot be progressed as it is not 5 Braunberger v Assistant Commissioner Les Hopkins [2014] QCAT 34. -- 6 of 7 -- 7 accepted by the Tribunal as no leave has been given to extend the time allowed for the filing of this application. [24] The application to extend or shorten a time limit or for waiver of compliance with procedural requirements filed 25 June 2020 is dismissed and therefore the application for review is not before the Tribunal i.e. there is no matter for the tribunal to review as his application for an extension of time to file the application for review has been refused. [25] In the circumstances, the application for an extension of time should be refused and the application to review a decision dismissed. -- 7 of 7 --